Are We All Balkinists Now?

Are We All Balkinists Now?

Are We All Balkinists Now?

Slate's blog on legal issues.
April 1 2008 1:11 AM

Are We All Balkinists Now?

Jack, I'm curious, based on your response to Eric's post -- and implicitly, to my earlier one -- are there any past or current Supreme Court Justices whose decisions are not on the whole reasonably consistent with your  advice? My earlier understanding was that almost every SupremeCourt Justice (certainly all of the current ones) did/do what yousuggest.  I'm curious if you see any outliers.  It seems to me that one possibility is Justice Douglas, whose opinions often delighted in ignoring traditional modes of legal reasoning.  Anyone else?

Actually, a second question, if I may.  Your "Top 10 list of things judges should do" appears to be advice on reaching results, not what opinions should actually say.  If I'm right about that, was the emphasis intentional? 

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I'm curious about that because substance and process can be quite different.  Imagine two Justices, Justice Windowdressing and Justice Substance.  Justice Windowdressing thinks law is stupid and it's all politics.  He tells his law clerks that no matter what the law says, he will be voting in the liberal direction in every case with an ideological valence; in the non-ideological cases, he will just flip a coin.  But, he explains, he wants the clerks to dress up his results using the Balkin list so the opinions read as if they were based in the law.  He hires the best clerks Yale can provide, so his opinions sing; law professors love just them, and they are considered works of judicial art.

In contrast, Justice Substance actually does read the Balkin list and follows it with great faith and devotion.  Unfortunately, Justice Substance and her law clerks spend so much time thinking about the Balkin principles that they can't be bothered to write judicial opinions.  In fact, Justice Substance thinks that the actual opinions are dumb. Instead of writing traditional opinions, Justice Substance always puts out a one sentence solo opinion -- concurring in the judgment or dissenting, as the case may be -- that states: "Blah blah blah.  Nyuck, nyuck, that's all folks!!!"

I guess my question is this: Is the legitimacy that you have in mind a question of appearance (in which case Justice Windowdressing is a model Justice) or the process of reaching results (in which Justice Substance is the model) or some mix of the two?